FIFTH SECTION

CASE OF ALPATOV AND OTHERS v. UKRAINE

(Application no. 7321/05 and 107 other applications)

JUDGMENT

This version was rectified on 4 February 2013

under Rule 81 of the Rules of Court

STRASBOURG

18 December 2012

This judgment is final. It may be subject to editorial revision.

In the case of Alpatov and others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Angelika Nußberger, President,
 André Potocki,
 Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 27 November 2012,

Having noted that the underlying question in the applications is already the subject of well-established case-law of the Court and that the parties had the ample opportunity to comment on it and on any other aspects of the case,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in 108 applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 118 Ukrainian nationals and companies based in Ukraine, whose details are specified in the annexed tables (“the applicants”).

2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kultchytskyy, of the Ministry of Justice.

3.  The applications, which mainly concern the issues of lengthy non-enforcement of domestic decisions given in the applicants’ favour, were communicated to the Government on various dates. The Government have submitted observations concerning some of the applications. Having been initially adjourned in accordance with the Yuriy Nikolayevich Ivanov pilot judgment (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, ECHR 2009‑... (extracts)), the proceedings in the applications have been resumed in February 2012 (for further details see Kharuk and others v. Ukraine [Committee], no.703/05, §§ 4-6, 26 July 2012).

4.  On various dates the Government submitted to the Court unilateral declarations concerning all the present applications, and requested the Court to strike the applications out of the list of cases pursuant to Article 37 § 1 (c) of the Convention on the basis of the declarations. The Court examined the declarations and decided to reject the Government’s requests.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Non-enforcement issues

5.  On the dates set out in the annexed tables domestic courts and commissions on labour disputes delivered decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken in their favour. The decisions became enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time because of the authorities’ failure to take specific budgetary or regulatory measures, because of the introduction of bans on the attachment and sale of property belonging to State-owned or controlled companies, or because of the bailiffs’ omissions.

B.  Other matters

6.  Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.

THE LAW

I.  JOINDER OF THE APPLICATIONS

7.  In view of the similarity of the applications in terms of the principal legal issues raised, the Court finds it appropriate to join them.

II.  ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PRTOCOL No. 1

8.  The applicants complained about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints. They relied, expressly or in substance, on Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 which read, in so far as relevant, as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal...”

Article 13

 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...

 Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  Admissibility

9.  The Court notes that the applicants’ above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

10.  The Court notes that the decisions in the applicants’ favour remained unenforced for lengthy periods of time, for which the authorities were responsible.

11.  The Court reiterates that it has already found violations of the Convention in similar cases (see Kharuk and others, cited above, §§ 17-19).

12.  Having examined all the material in its possession, the Court finds no fact or argument capable of persuading it to reach a different conclusion in the present cases.

13.  There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the prolonged non-enforcement of the decisions in the applicants’ favour and a violation of Article 13 of the Convention in that the applicants did not have an effective domestic remedy to redress the damage created by such non-enforcement.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

14.  Some of the applicants raised other complaints under the Convention which the Court has carefully examined. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

15.  It follows that those complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage, costs, and expenses

17.  In line with the approach applied in Kharuk and others (cited above, §§ 23-27), the Court considers it reasonable and equitable to award 3,000 euros (EUR) to each applicant in the applications which concern non-enforcement delays exceeding three years (the applications tabulated in Annex 1) and EUR 1,500 to each applicant in the other applications (the applications tabulated in Annex 2). These sums are to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

18.  The Court further notes that the respondent State has an outstanding obligation to enforce the decisions which have not been enforced.

B.  Default interest

19.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to join the applications;

2.  Declares the applicants’ complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints admissible and the remainder of the applications inadmissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1;

4.  Holds that there has been a violation of Article 13 of the Convention;

5.  Holds

(a)  that the respondent State is to enforce the domestic decisions in the applicants’ favour which have not been enforced and is to pay, within three months, EUR 3,000 (three thousand euros) to each applicant or his or her estate in the applications tabulated in Annex 1 and EUR 1,500 (one thousand five hundred euros) to each applicant or his or her estate in the applications tabulated in Annex 2 in respect of pecuniary and non-pecuniary damage and costs and expenses, plus any tax that may be chargeable to the applicants on the above amounts which are to be converted into the national currency at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 18 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Angelika Nußberger
Deputy Registrar President

ANNEX 1

(non-enforcement delays more than three years)

ANNEX 2

(non-enforcement delays less than three years)

[1].  Rectified on 4 February 2013; the text read “6 December”.

[2].  Rectified on 4 February 2013; the text read “21 March 2002 and 28 May 2008”.

[3].  Rectified on 4 February 2013; the text read “28 September”.